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The writ of mandamus does not issue to control or review the Substantive Issues
exercise of discretion or to compel a course of conduct, which,
it quickly seems to us, was what the petitioner would have the
As an offspring of the 1987 Constitution, the JBC is mandated
JBC do in his favor. The function of the JBC to select and
to recommend appointees to the judiciary and only those
recommend nominees for vacant judicial positions is
nominated by the JBC in a list officially transmitted to the
discretionary, not ministerial. More so, the petitioner cannot
President may be appointed by the latter as justice or judge in
claim any legal right to be included in the list of nominees for
the judiciary. Thus, the JBC is burdened with a great
judicial vacancies. Possession of the constitutional and
responsibility that is imbued with public interest as it
statutory qualifications for appointment to the judiciary may
determines the men and women who will sit on the judicial
not be used to legally demand that ones name be included in
bench. While the 1987 Constitution has provided the
the list of candidates for a judicial vacancy. Ones inclusion in
qualifications of members of the judiciary, this does not
the list of the candidates depends on the discretion of the JBC,
preclude the JBC from having its own set of rules and
thus:
procedures and providing policies to effectively ensure its
mandate.
The fact that an individual possesses the constitutional and
statutory qualifications for appointment to the Judiciary does
The functions of searching, screening, and selecting are
not create an entitlement or expectation that his or her name
necessary and incidental to the JBCs principal function of
be included in the list of candidates for a judicial vacancy. By
choosing and recommending nominees for vacancies in the
submitting an application or accepting a recommendation,
judiciary for appointment by the President. However, the
one submits to the authority of the JBC to subject the former
Constitution did not lay down in precise terms the process
to the search, screening, and selection process, and to use its
that the JBC shall follow in determining applicants
discretion in deciding whether or not one should be included
qualifications. In carrying out its main function, the JBC has
in the list. Indeed, assuming that if one has the legal right to
the authority to set the standards/criteria in choosing its
be included in the list of candidates simply because he or she
nominees for every vacancy in the judiciary, subject only to
possesses the constitutional and statutory qualifications, then
the minimum qualifications required by the Constitution and
the application process would then be reduced to a mere
law for every position. The search for these long held qualities
mechanical function of the JBC; and the search, screening,
necessarily requires a degree of flexibility in order to
and selection process would not only be unnecessary, but also
determine who is most fit among the applicants. Thus, the JBC
improper. However, this is clearly not the constitutional intent.
has sufficient but not unbridled license to act in performing its
Ones inclusion in the list of candidates is subject to the
duties.
discretion of the JBC over the selection of nominees for a
particular judicial post. Such candidates inclusion is not,
therefore, a legally demandable right, but simply a privilege JBCs ultimate goal is to recommend nominees and not simply
the conferment of which is subject to the JBCs sound to fill up judicial vacancies in order to promote an effective
discretion. and efficient administration of justice. Given this pragmatic
situation, the JBC had to establish a set of uniform criteria in
order to ascertain whether an applicant meets the minimum
Moreover, petitioner is essentially seeking a promotional
constitutional qualifications and possesses the qualities
appointment, that is, a promotion from a first-level court to a
expected of him and his office. Thus, the adoption of the five-
second level court. There is no law, however, that grants him
year requirement policy applied by JBC to the petitioners case
the right to a promotion to second-level courts.15 (Emphasis
is necessary and incidental to the function conferred by the
in the original)
Constitution to the JBC.
In this case, the petition for declaratory relief did not involve "The equal protection clause, therefore, does not preclude
an unsound policy. Rather, the petition specifically sought a classification of individuals who may be accorded different
judicial declaration that the petitioner has the right to be treatment under the law as long as the classification is
included in the list of applicants although he failed to meet reasonable and not arbitrary."22 "The mere fact that the
legislative classification may result in actual inequality is not questioned policy does not infringe on the equal protection
violative of the right to equal protection, for every clause as it is based on reasonable classification intended to
classification of persons or things for regulation by law gauge the proven competence of the applicants. Therefore,
produces inequality in some degree, but the law is not thereby the said policy is valid and constitutional
rendered invalid."23
Due Process
That is the situation here. In issuing the assailed policy, the
JBC merely exercised its discretion in accordance with the
The petitioner averred that the assailed policy violates
constitutional requirement and its rules that a member of the
procedural due process for lack of publication and non-
Judiciary must be of proven competence, integrity, probity and
submission to the University of the Philippines Law Center
independence.24 "To ensure the fulfillment of these standards
Office of the National Administrative Register (ONAR). The
in every member of the Judiciary, the JBC has been tasked to
petitioner said that the assailed policy will affect all applying
screen aspiring judges and justices, among others, making
judges, thus, the said policy should have been published.
certain that the nominees submitted to the President are all
qualified and suitably best for appointment. In this way, the
appointing process itself is shielded from the possibility of Contrary to the petitioners contention, the assailed JBC policy
extending judicial appointment to the undeserving and need not be filed in the ONAR because the publication
mediocre and, more importantly, to the ineligible or requirement in the ONAR is confined to issuances of
disqualified."25 Consideration of experience by JBC as one administrative agencies under the Executive branch of the
factor in choosing recommended appointees does not government.27 Since the JBC is a body under the supervision
constitute a violation of the equal protection clause. The JBC of the Supreme Court,28 it is not covered by the publication
does not discriminate when it employs number of years of requirements of the Administrative Code.
service to screen and differentiate applicants from the
competition. The number of years of service provides a
Nevertheless, the assailed JBC policy requiring five years of
relevant basis to determine proven competence which may be
service as judges of first-level courts before they can qualify
measured by experience, among other factors. The difference
as applicants to second-level courts should have been
in treatment between lower court judges who have served at
published. As a general rule, publication is indispensable in
least five years and those who have served less than five
order that all statutes, including administrative rules that are
years, on the other hand, was rationalized by JBC as follows:
intended to enforce or implement existing laws, attain binding
force and effect. There are, however, several exceptions to
Formulating policies which streamline the selection process the requirement of publication, such as interpretative
falls squarely under the purview of the JBC. No other regulations and those merely internal in nature, which
constitutional body is bestowed with the mandate and regulate only the personnel of the administrative agency and
competency to set criteria for applicants that refer to the not the public. Neither is publication required of the so-called
more general categories of probity, integrity and letters of instructions issued by administrative superiors
independence. concerning the rules or guidelines to be followed by their
subordinates in the performance of their duties.29
The assailed criterion or consideration for promotion to a
second-level court, which is five years experience as judge of Here, the assailed JBC policy does not fall within the
a first-level court, is a direct adherence to the qualities administrative rules and regulations exempted from the
prescribed by the Constitution. Placing a premium on many publication requirement. The assailed policy involves a
years of judicial experience, the JBC is merely applying one of qualification standard by which the JBC shall determine
the stringent constitutional standards requiring that a proven competence of an applicant. It is not an internal
member of the judiciary be of "proven competence." In regulation, because if it were, it would regulate and affect only
determining competence, the JBC considers, among other the members of the JBC and their staff. Notably, the selection
qualifications, experience and performance. process involves a call to lawyers who meet the qualifications
in the Constitution and are willing to serve in the Judiciary to
apply to these vacant positions. Thus, it is but a natural
Based on the JBCs collective judgment, those who have been
consequence thereof that potential applicants be informed of
judges of first-level courts for five(5) years are better qualified
the requirements to the judicial positions, so that they would
for promotion to second-level courts. It deems length of
be able to prepare for and comply with them.
experience as a judge as indicative of conversance with the
law and court procedure. Five years is considered as a
sufficient span of time for one to acquire professional skills for The Court also noted the fact that in JBC-009, otherwise
the next level court, declog the dockets, put in place improved known as the Rules of the Judicial and Bar Council, the JBC had
procedures and an efficient case management system, adjust put its criteria in writing and listed the guidelines in
to the work environment, and gain extensive experience in determining competence, independence, integrity and probity.
the judicial process. A five-year stint in the Judiciary can also Section 1, Paragraph 1 of Rule 9 expressly provides that
provide evidence of the integrity, probity, and independence applicants for the Court of Appeals and the Sandiganbayan,
of judges seeking promotion. To merit JBCs nomination for should, as a general rule, have at least five years of
their promotion, they must have had a "record of, and experience as an RTC judge, thus:
reputation for, honesty, integrity, incorruptibility,
irreproachable conduct, and fidelity to sound moral and
RULE 9 SPECIAL GUIDELINES FOR NOMINATION TO A
ethical standards." Likewise, their decisions must be reflective
VACANCY IN THE COURT OF APPEALS AND SANDIGANBAYAN
of the soundness of their judgment, courage, rectitude, cold
neutrality and strength of character.
Section 1. Additional criteria for nomination to the Court of
Appeals and the Sandiganbayan.In addition to the foregoing
Hence, for the purpose of determining whether judges are
guidelines the Council should consider the following in
worthy of promotion to the next level court, it would be
evaluating the merits of applicants for a vacancy in the Court
premature or difficult to assess their merit if they have had
of Appeals and Sandiganbayan:
less than one year of service on the bench.26 (Citations
omitted and emphasis in the original)
1. As a general rule, he must have at least five years of
experience as a judge of Regional Trial Court, except when he
At any rate, five years of service as a lower court judge is not
has in his favor outstanding credentials, as evidenced by,
the only factor that determines the selection of candidates for
inter alia, impressive scholastic or educational record and
RTC judge to be appointed by the President. Persons with this
performance in the Bar examinations, excellent reputation for
qualification are neither automatically selected nor do they
honesty, integrity, probity and independence of mind; at least
automatically become nominees. The applicants are chosen
very satisfactory performance rating for three (3) years
based on an array of factors and are evaluated based on their
preceding the filing of his application for nomination; and
individual merits. Thus, it cannot be said that the questioned
excellent potentials for appellate judgeship.
policy was arbitrary, capricious, or made without any basis.
x x x x (Emphasis ours)
Clearly, the classification created by the challenged policy
satisfies the rational basis test. The foregoing shows that
substantial distinctions do exist between lower court judges The express declaration of these guidelines in JBC-009, which
with five year experience and those with less than five years have been duly published on the website of the JBC and in a
of experience, like the petitioner, and the classification newspaper of general circulation suggests that the JBC is
enshrined in the assailed policy is reasonable and relevant to aware that these are not mere internal rules, but are rules
its legitimate purpose. The Court, thus, rules that the implementing the Constitution that should be published. Thus,
if the JBC were so-minded to add special guidelines for From the foregoing, it is apparent that the petitioner has not
determining competence of applicants for RTC judges, then it established a clear legal right to justify the issuance of a
could and should have amended its rules and published the preliminary injunction. The petitioner has merely filed an
same. This, the JBC did not do as JBC-009 and its amendatory application with the JBC for the position of RTC judge, and he
rule do not have special guidelines for applicants to the RTC. has no clear legal right to be nominated for that office nor to
be selected and included in the list to be submitted to the
President which is subject to the discretion of the JBC. The JBC
Moreover, jurisprudence has held that rules implementing a
has the power to determine who shall be recommended to the
statute should be published. Thus, by analogy, publication is
judicial post. To be included in the list of applicants is a
also required for the five-year requirement because it seeks to
privilege as one can only be chosen under existing criteria
implement a constitutional provision requiring proven
imposed by the JBC itself. As such, prospective applicants,
competence from members of the judiciary. Nonetheless, the
including the petitioner, cannot claim any demandable right to
JBCs failure to publish the assailed policy has not prejudiced
take part in it if they fail to meet these criteria. Hence, in the
the petitioners private interest. At the risk of being repetitive,
absence of a clear legal right, the issuance of an injunctive
the petitioner has no legal right to be included in the list of
writ is not justified.
nominees for judicial vacancies since the possession of the
constitutional and statutory qualifications for appointment to
the Judiciary may not be used to legally demand that ones As the constitutional body granted with the power of
name be included in the list of candidates for a judicial searching for, screening, and selecting applicants relative to
vacancy. Ones inclusion in the shortlist is strictly within the recommending appointees to the Judiciary, the JBC has the
discretion of the JBC.30 authority to determine how best to perform such
constitutional mandate. Pursuant to this authority, the JBC
issues various policies setting forth the guidelines to be
As to the issue that the JBC failed or refused to implement the
observed in the evaluation of applicants, and formulates rules
completion of the prejudicature program as a requirement for
and guidelines in order to ensure that the rules are updated to
appointment or promotion in the judiciary under R.A. No.
respond to existing circumstances. Its discretion is freed from
8557, this ground of the petition, being unsubstantiated, was
legislative, executive or judicial intervention to ensure that
unfounded. Clearly, it cannot be said that JBC unlawfully
the JBC is shielded from any outside pressure and improper
neglects the performance of a duty enjoined by law.
influence. Limiting qualified applicants in this case to those
judges with five years of experience was an exercise of
Finally, the petitioner argued but failed to establish that the discretion by the JBC. The potential applicants, however,
assailed policy violates the constitutional provision under should have been informed of the requirements to the judicial
social justice and human rights for equal opportunity of positions, so that they could properly prepare for and comply
employment. The OSG explained: with them. Hence, unless there are good and compelling
reasons to do so, the Court will refrain from interfering with
the exercise of JBCs powers, and will respect the initiative and
[T]he questioned policy does not violate equality of
independence inherent in the latter.
employment opportunities. The constitutional provision does
not call for appointment to the Judiciary of all who might, for
any number of reasons, wish to apply. As with all professions, WHEREFORE, premises considered, the petition is DISMISSED.
it is regulated by the State. The office of a judge is no ordinary The Court, however, DIRECTS that the Judicial and Bar Council
office. It is imbued with public interest and is central in the comply with the publication requirement of (1) the assailed
administration of justice x x x. Applicants who meet the policy requiring five years of experience as judges of first-
constitutional and legal qualifications must vie and withstand level courts before they can qualify as applicant to the
the competition and rigorous screening and selection process. Regional Trial Court, and (2) other special guidelines that the
They must submit themselves to the selection criteria, Judicial and Bar Council is or will be implementing.
processes and discretion of respondent JBC, which has the
constitutional mandate of screening and selecting candidates
SO ORDERED.
whose names will be in the list to be submitted to the
President. So long as a fair opportunity is available for all
applicants who are evaluated on the basis of their individual BIENVENIDO L. REYES
merits and abilities, the questioned policy cannot be struck Associate Justice
down as unconstitutional.31 (Citations omitted)